employmentlawtoday.com
Aug 15, 2019

Pregnant firefighters can be accommodated outside of 24-hour shifts: Arbitrator

Ontario firefighter wanted to remain on 24-hour shift for childcare reasons, but medical restrictions kept her from performing any jobs on the night part of the shift
By Mark Mason, Jessica Toldo, and Amanda Cohen

A recent Ontario arbitral decision from arbitrator Jasbir Parmar has provided some much needed clarification on municipalities’ obligations when accommodating pregnant firefighters on 24 hour shifts. In The Town of Ajax v Ajax Professional Fire Fighters’ Association, Local 1092, Arbitrator Parmar dismissed the Association’s grievance, re-affirming that municipal employers do not have an obligation to accommodate an employee in a position in which they cannot complete the “essential duties” of the job.

The grievor was a female suppression firefighter with the town. In August of 2017 she informed the town that she was pregnant and she would require accommodations for the remainder of her pregnancy. She also provided the town with a doctor’s note which stated that she was required to be “off truck due to pregnancy.” She indicated that her doctor had concerns about her performing at full capacity, wearing bunker gear or self-contained breathing apparatus (SCBA) or performing salvage or fire suppression. In other words, the grievor’s medical restrictions prevented her from responding to emergency calls.

Suppression firefighters in the town’s fire department were scheduled on 24-hour shifts. They were the only employees scheduled on these shifts. The town scheduled each shift with 21 firefighters (16 firefighters, four captains and one platoon chief). The minimum staffing complement per shift was sixteen. Suppression firefighters were responsible for both emergency and non-emergency duties. Approximately 90 per cent of non-emergency duties were performed during the “day” portion of the shift — from 8 a.m. to 8 p.m. Emergency response duties involved responding to emergency calls. These calls happened throughout the 24-hour shift.

Efforts to accommodate the grievor

It was the town’s normal policy and practice to assign firefighters who required accommodation for an extended period to the day shift.

The grievor, however, was adamant that she be accommodated on the 24-hour shift. Part of this request was based on her stated childcare obligations. The grievor’s husband is also a firefighter with the town. They worked opposite shifts which allowed them both to be available to care for their son. The grievor wanted to maintain this schedule by remaining on the 24-hour shift but “not in a firefighter role”.

The town engaged in a number of discussions with the grievor and the association regarding potential accommodation options and modified duties within the 24-hour shift. Ultimately, the town concluded that the normal policy should apply and that the best option was to assign the grievor to modified duties on the day shift. This decision was explained to the grievor in an e-mail on Aug. 30, 2017. The e-mail outlined the discussion the workplace parties engaged in and the specific workplace policies and procedures. In the email, the Fire Chief also explained his reasons for rejecting the grievor’s request, noting that:

"The Town is unable to approve your request to remain on shift while on modified duties for the following reasons:

1) During your first pregnancy you and the Association expressed concern with responding to emergency incidents due to possible exposures to various contaminants and potential harm to your unborn baby. The Town supported the concern at that time and continues to support that concern. As you would be unable to perform your duties as a Fire Fighter and also unable to respond to emergency calls because of the potential for exposure, there would be no meaningful modified duties for you to perform while on shift and especially during the night hours while others may be sleeping.

2) You have indicated that there is daycare available for your current child while you are working dayshift although it was not your preference."

The grievor rejected this response, arguing that the town had been confused about the availability of part-time daycare. She stated that the schedules of her and her husband made flexible childcare a need and not a preference. The Chief considered this additional information but found that this did not change the accommodation offered. The association subsequently filed a grievance alleging that the town failed in its duty to accommodate the grievor under the Ontario Human Rights Code.

Although the grievance had been filed, the town and the grievor again met to discuss childcare needs. The town explained that they would allow her to take time off through vacation, lieu or bank time for childcare. While the grievor was supposed to commence her day shift on Sept. 5, the town allowed her additional time to research childcare options. The grievor commenced her day shift schedule on Sept. 19, 2017. Further, the grievor would be working the four-day-per-week schedule and the town stated that the grievor could adjust her day off to cover her childcare needs.

Submissions

The Association alleged that the town had discriminated against the grievor on the basis of her pregnancy and had failed to meet both its procedural and substantive duty to accommodate. With respect to the procedural component of the duty, the association submitted that the town blindly applied its policy on accommodation and in doing so failed to properly assess the grievor’s request to be accommodated on shift. On the substantive duty, the association asserted that the duty required the consideration first be given to accommodating an employee on their regular shift. The association argued that the Town had failed to properly exercise this duty as it had failed to consider all of the duties that the grievor could do in the fire suppression role.

In response, the town asserted that it had followed the appropriate process. The town argued that there was no childcare obligation that required accommodation. Specifically, the town stated that the grievor’s desire to have her son remain in his existing daycare and childcare routine amounted to a preference and not a need that required accommodation. Turning to her restrictions and limitations, the town noted that the first consideration in the accommodation analysis is the ability of the employee to do the essential duties of their own job with accommodation. The town asserted that where an employee cannot perform the essential duties, even with accommodation, an employer was entitled to consider other work that the employee could do. The town argued that it was not required to accommodate the grievor on her regular shift because she was unable to perform the essential duties of the 24-hour shift.

Decision

Arbitrator Parmar addressed the association’s procedural and substantive arguments separately. On the procedural component, she disagreed with the association’s assertion that the town had failed to meet its procedural duties. She noted that the evidence clearly demonstrated that the Chief and Deputy Chief had met with the grievor on multiple occasions to discuss accommodation options. Arbitrator Parmar noted that “in considering whether an employee has fulfilled the procedural duty, the objective is to ensure the employer is engaged in a serious effort to consider and assess the issue of accommodation in all of the circumstances of the case.” She found that the evidence supported the fact that the Town had engaged in such a process.

Turning to the substantive duty, she noted that the purpose of accommodation was to arrange the duties or workplace in such a way as to allow the employee to do their work. The focus of the analysis therefore turns on the essential duties of the job. She noted that the evidence in this case indicated that half of the fire suppression 24-hour shift was emergency response work, which the grievor acknowledged she could not perform. Therefore, if the grievor were assigned to this shift, she would not be able to go into the hot zone and engage in fire suppression and therefore would not be counted as part of the minimum complement. Her accommodation in the 24-hour shift would therefore require the town to staff an additional employee in order to ensure that there were sufficient firefighters necessary to safely perform the required work involved in emergency response.

Arbitrator Parmar rejected such an option. She made it clear that an employer was not required as a form of accommodation to assign an extra staff person to perform the duties that an employee seeking accommodation could not do. Further, an employer was not required to fundamentally change the nature of the work that it needs done. In concluding that the town had properly fulfilled its substantive duty to accommodate the grievor, Arbitrator Parmar noted that:

"If these duties were assigned to the Grievor, it would not be because it would serve the Town’s needs, since the work can be performed by the regular complement. It would be for the singular objective of providing the Grievor with duties she could be assigned at that particular time of the day. That is the definition of a make-work assignment, and the law is crystal clear that employers are not expected to engage in those sorts of assignments in order to meet their obligations under the Code.

Key takeaways

Arbitrator Parmar’s decision has clarified a number of key considerations that municipalities should keep in mind when accommodating pregnant firefighters on 24-hour shifts (and accommodating employees in general):

  • With regard to the procedural duty to accommodate, the objective is to ensure the employer is engaged in a serious effort to consider and assess the issue of accommodation in all of the circumstances of the case

  • The application of a policy/practice regarding accommodation is not necessarily inconsistent with this “serious effort” as long as the policy/practice is applied to the individual circumstances of the grievor

  • Employees must be able to do the essential duties of the position (either with or without accommodation) in order to be accommodated in that role

  • The substantive duty to accommodate does not require an employer to up-staff their complement

  • Where it is established that an employee cannot perform the essential duties of their job an employer is entitled to consider accommodation options outside of their regular job

  • Absent specific language in a collective agreement, an employee does not have a right to a particular shift (i.e. a 24 hour shift).

For more information see:

  • Ajax Professional Fire Fighters’ Association, Local 1092 v. Ajax (Town), 2019 CanLii 69278 (Ont. Arb.). 

Mark H. Mason is a partner with Hicks Morley in Toronto, practicing employment and labour law. He can be reached at (416) 864-7280 or mark-mason@hicksmorley.com. Jessica M. Toldo and Amanda P. Cohen are labour and employment lawyers with Hicks Morley in Toronto. Jessica can be reached at (416) 864-7529 or jessica-toldo@hicksmorley.com. Amanda can be reached at (416) 864-7316 or amanda-cohen@hicksmorley.com.